Flag Poles

If any of you have read the news stories about the OH Army Chaplin taking his Association to court over his free standing flag pole, I believe that it might have far reaching impact on many HOAs.

Here is a link to the stories:

Macedonia homeowners association tells veteran to remove flagpole, vet fights to keep it

Story sparks flag-raising ceremony

From my understanding, the argument is that OH Law 5301.072, Ohio 5311.191 and Freedom to Display the American Flag Act of 2005 all specifically prohibit HOAs from prohibiting the flying of the flag.

The Federal act does allow for HOAs to have "any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association".

My gathering from the stories and reading the law is that the question will boil down to is banning a free standing flagpole that sits on private property (not common area) considered reasonable. As I read the OH laws, they don't appear to allow this restriction. Therefore, it will depend on the interpretation of the Federal law.

Depending on how the battle turns out (if it gets a legal ruling) it could impact all HOAs.

What are your thoughts?

Tim

Tim,

Here is what Florida went thru. We lived in the adjoining County so the news was full of this.

http://www.thegreatseparation.com/newsfront/2003/09/jupiter_marine_.html

http://www.ccfj.net/flyoldglory.htm

My thoughts? Have not HOA's have more to worry about than to get after a guy with a flag/ I think that the Federal law needs tweeking, to clarify the statement giving the HOA the ability to control "time" which is part of the law. Probably a few more areas as well but time comes to mind.

There are some important facts missing in what I saw/read about the situation, and that is the exact nature of the HOA. What I gathered (which may be incorrect) is that the plaintiff erected a flagpole on common property, although he believes it is his "yard" because it looks a lot like a private yard. I got the impression that the "yard" is actually common area, owned and maintained by the HOA. To me, that's the key: who owns that patch of property.

If the plaintiff owns it, law requires he be allowed to display a flag in a reasonable manner. IF the HOA owns it, then the law says they can control it.

per Ohio law, a flag can be flown with consent of the property owner (ie, the HOA). The HOA allows flags to be flown from homes (attached flagpole) because the law requires that. But Ohio law does not require YOU to allow someone else to fly a flag on your property, if you don't wish.

The statute in question:

5301.072 Deed restrictions prohibiting placement of flag unenforceable (new window).
(A) No covenant, condition, or restriction set forth in a deed, and no rule, regulation, bylaw, or other governing document or agreement of a homeowners, neighborhood, civic, or other association, shall prohibit or be construed to prohibit the placement on any property of a flagpole that is to be used for the purpose of displaying, or shall prohibit or be construed to prohibit the display on any property of, the flag of the United States if the flag is displayed in accordance with any of the following:

(1) The patriotic customs set forth in 4 U.S.C.A. 5-10, as amended, governing the display and use of the flag of the United States;

(2) The consent of the property's owner or of any person having lawful control of the property;

(3) The recommended flagpole standards set forth in "Our Flag," published pursuant to S.C.R. 61 of the 105th Congress, 1st Session (1998);

(4) Any federal law, proclamation of the president of the United States or the governor, section of the Revised Code, or local ordinance or resolution.

(B) A covenant, condition, restriction, rule, regulation, bylaw, governing document, or agreement or a construction of any of these items that violates division (A) of this section is against public policy and unenforceable in any court of this state to the extent it violates that division.

Troy,

The States do but the Federal Law comes into play. Again, interpretation from the Federal level down is subject to interpretation.

I went through this in our HOA. After I fired our landscaper, he threw a fit that he gets to keep the flagpole he installed at the front entrance. It is common area and the main and only entrance area. I told him he could take the pole. However, many residents were disturbed by the pole/flag missing.

What I did is have a vote and the members voted to pay out the $500 for a new pole and flag to be placed in that spot. (Long story involved with the contractor who installed I won't go into). It was also agreed that NO resident would buy their own individual pole. The pole at the entrance would represent us all. This was one of the easiest decisions I made my first year as President and one of the most successful.

Unfornately, a few weeks into the new installation a new issue arrived. It turns out there are specific rules on how to display an American Flag. A point that the veterans in our HOA insured we knew about. They felt disrespected and almost had us take it down. If we couldn't fly it right, then we shouldn't fly one at all...

It turns out the solution was to install a spotlight to shine on the flag. One of the rules is that the flag should never be in the dark. That if you do not remove the flag down by sunset, then you must have a spotlight on it. Since no one was going to go out every day to put up and down the flag, we voted to buy a spot light.

That flagpole is still there till this day. I don't think many people thought about it since we fixed the issues. The only new issue that pole may cause now is if it falls on a car....LOL...

As to the specific Ohio story, I went back and reread the articles. Glen is right in what he posted. It appears that the argument is more over the fact that the flagpole was installed prior to getting approval. At least that appears to be the Associations position. One has to wonder if the flagpole would be approved if procedures were followed first.

Donna,

Thank you for those links. It was very interesting reading.

For Everyone,

I looked up an old newsletter from our Attorney that discussed the Federal law about Flags and they interpreted the law as follows:

This legislation means that community associations may not enact rules and regulations that outright bar owners from displaying the American flag on their property, but may lawfully enact rules regarding the time, place and manner of display.

Tim

Update to the story,

It appears that the HOA chose to allow the flagpole. Therefore, the issue won't go to court.

Here is the link to the story:

http://www.newsnet5.com/dpp/news/local_news/investigations/macedonia-homeowners-association-gives-up-flagpole-fight-allows-veteran-to-fly-flag-in-front-yard

The above quote is what the story was truly about - not following protocol

I consider myself just as patriotic as the next person - however I live in an HOA community and I must follow the rules just like everyone else with no exception.